This week, Todd Smith and Jody Sanders welcome back Jerry Bullard, an attorney at Adams, Lynch & Loftin, PC, for a rundown on new statutes from the Texas Legislature’s regular and special sessions that affect trial and appellate practitioners. In this episode, you’ll receive updates on bills concerning business organizations, healthcare for medical workers during the COVID pandemic, and more. The discussion includes revisions to Texas Civil Practice & Remedies Code Section 38.001, which now covers all business organizations, and bills of interest that didn’t make it out of the Legislature. Don’t miss these important updates!

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A Texas Legislative Postmortem | Jerry Bullard

Our guest is a repeat guest that we’ve had in January 2021. We had Jerry Bullard on to give us a forecast of what the Texas legislature might be looking at doing the session. Now that we’ve ended the regular session and we’re now into multiple special sessions, we thought we’d have Jerry back to give us the rundown of what happened, what’s going on right now and maybe things that we can keep an eye out for in the future that might come back around from this last session. Jerry, welcome back. Tell us briefly who you are and what you do for readers who may not have read our prior episode with you.

I’m happy to do that, Jody. First of all, thank you for having me back. I like to think of myself probably as more of a repeat offender than repeat guest. I’ll try to make sure my mind matters this time. Jerry Bullard with Adams, Lynch & Loftin in the Mid Cities. I consider myself a Fort Worth lawyer, even though I’m technically not in Fort Worth proper. I’m an appellate practitioner primarily like Jody and Todd. I’ve been tracking the legislature since about 2004, primarily to keep an eye on what’s going on.

person holding receipts with calculator

Texas Legislative Postmortem: Around 7,000 bills get filed in a regular session.

Not necessarily because I can do anything to affect legislation but primarily as a public service to those and the bar. I was sitting on the bench, too, that liked to know what’s going on in Austin because we all can’t keep up with everything that goes through a legislative session. Even though they meet every two years, there’s a lot of things done during those almost six months that affects our profession. I’ve been doing that for several years. I enjoy doing it. I don’t know what that tells you about me or how my mind works. I’m happy to provide the service.

How many bills get filed in a regular session?

It’s usually around 7,000 or so at least in recent times. This past session, there were 6,927 bills filed, which is, historically speaking, the third highest total of bills that our legislature has been asked to address. When I say bills, that also includes resolutions that could end up being a resolution that puts some issue on the ballot to amend our constitution.

Our high watermark was in 2009 where we had 7,419. In the last session we had 7,324. Around 6,000-7,000 is not unusual in terms of bills that get filed. They get all dealt with, some just die on the vine. That’s the number we’re usually looking at. If you want to know as far as passage rates, in this session, we had 1,073 that passed, which struck me as being somewhat of a low number, believe it or not.

When I went back and looked at the stats, the last time there were fewer than 1,000 bills passed by our legislature was in 1991. That was 960. That was only about 100 fewer. That low watermark, at least from my standpoint of the last several years, the last session I passed 1,429. In 2009, that may have been the highest number, it was 1,400. There was a lot of work put on their plate to deal with for various reasons. They always didn’t get as much work done as they have in the past but they are busy.

We covered in some detail the last time you were here was about your mailing list and the service you provide to Texas lawyers and others who want to stay abreast of what’s going on in the legislature, the current status of bills and so forth. We should refer back to that previous episode because I know we provided them the information of how they could get on the list and all of that. It’s worth mentioning, you’ve continued to keep us apprised since you were last here of what bills have been filed that may affect civil. Your focus on civil litigation practice and civil litigants is accurate to say.

group of people sitting in a courtroom

Texas Legislative Postmortem: We may see some legislation to deal with the appellate court redistricting remote proceedings.

They’re faring in the various processes that they have to go through to ultimately be passed into law and signed by the governor. If anyone is interested in getting into that detail, I’d certainly refer them back to your list because you do a great job of keeping us informed about what’s happening in the legislature and particularly the bills that may come to affect a civil litigation practice in Texas.

Thank you for that plug. I’m happy to add anybody to the list who wants to be on it. The more the merrier.

Taking this backward, I’ve noticed in your emails that you’ve said that few, if any of the bills pending in special session are expected to impact civil practice in Texas. Is that still the case?

That’s still the case. There was some thought we may see some legislation to deal with the appellate court redistricting or remote proceedings. There was some thought perhaps that could show up again but that does not look like it’s going to be the case for either one of those two topics. It’s things like re-districting overall, vaccines, mandates for masks and all that good stuff. Things that are in the news that attract the most attention.

That was one of the reasons why we felt comfortable moving ahead even though we’re still in a special session. The regular session has come and gone and we know the laws that were enacted have become effective. That typically happens on September 1, generally. We don’t expect anything to come about after this episode that’s going to have much of an impact on civil litigation but we are able now to talk about how accurate your predictions were, Jerry, and what was going to come about for the regular session.

My predictions are probably about as accurate as your local weatherman, but they still have jobs.

You don’t get paid for this service that you provide for the bar. Everyone should recognize that you get what you pay for sometimes but this is a very difficult job that you’ve taken on to not only track these bills, nobody expects anybody to offer any prediction with any accuracy. I say that completely tongue in cheek.

I’ll remember that one of these days.

Let’s talk about what happened in the first regular session. What things came out of that session that practitioners, lawyers, courts need to know about?

I’ll tell you one of the most popular questions that were asked of me before the session began. Quite frankly, it’s one of the questions asked since 2014 when this became an issue was, the attorney’s fees statute, Chapter 38 of the Civil Practice and Remedies Code. A little background on that in 2014, one of the Court of Appeals had issued a decision that said, “If you were not an individual or corporation and you being a defendant, that you are not going to be liable for attorney’s fees under Chapter 38.” Unless you had a contract or something that provided that you would be responsible for.

The court interpreted the statute in a fashion that sentence and the statute didn’t say anything other than an individual corporation that all other entities were excluded from that definition. Your LLCs, limited partnerships, GPs, organizations along those lines, they were not liable under Chapter 38. In this session, we finally have a bill that got across the finish line that amended that statute to include all business organizations as defined under the Business Organizations Code wouldn’t be subject to attorney’s fees under that statute.

There was a carve-out for nonprofits, for charitable organizations, for churches but other than that, all business organizations are going to be caught within that statutory definition of business organization. From my standpoint, that’s a good thing because it was causing a lot of confusion and problems for parties who had no idea that they couldn’t recover their attorney’s fees.

That’s a pretty good fix. More background on that, every session since 2014, multiple bills were filed to fix this problem. In this session, there were nine that were filed that would have dealt with it in some form or fashion. HB 1578 was the bill that got across the finish line. That was Representative Landgraf’s bill as a representative out of Odessa. A lot of people were asking about so we’ll have to come up with more questions on other topics for future sessions.

woman sitting in a lecture with hand raised

Texas Legislative Postmortem: If someone files a lawsuit that may or may not be subject to medical ability to act, they can ask the judge to make a preliminary determination as to whether or not an expert report is required.

You mentioned how the legislature expanded that statute and I liked the way they did it. They only changed a few words in the actual statute. They referred back in terms of defining what a business organization was. They referred back to the Business Organizations Code. If you meet the definition of a business organization, whatever the phraseology is in that code, you’re pulled within Chapter 38.001 in terms of being on the hook for attorney’s fees. I thought that was a pretty good, very clear amendment that didn’t leave much room for debate.

Except for those carve-outs that I have mentioned. That catches everybody as far as we know until someone says otherwise.

The most interesting thing to me is how long it took to fix what was not a particularly controversial fix.

It was never controversial. At least from what I could tell when you look at the bill sponsors and those who signed onto the bill. Each session for the past, let’s say 2015, 2017, 2019, four sessions, it was not a controversial bill. This is where you have to pull back the curtain a little bit to see what’s going on. If you were to do a little digging, bills that didn’t make it across the finish line last time were primarily due to who may have been carrying the bill. If somebody had an ax to grind to get somebody else then chances are, regardless of how good the bill was, it was not going to get anywhere. That’s probably what happened for the most part until this session.

Politics. I wonder, too and we may have said something about this before when we were visiting but there might’ve been some lobby interests going on in the background with say the oil and gas folks who typically operate in LLCs and other structures. There’s a lot of money at issue there and there are a lot of lawsuits. We’re not privy to that information but you are left to wonder.

There was a rumor that was going around in 2015, for sure, that perhaps there was some oil and gas in the lobbying interest. I thought, “We liked the idea of not having to deal with this.” You all know, a lot of times those entities are LLCs or LPs or something like that, that they probably liked the way they had that setup. Anyway, all water is under the bridge now.

Another bill that said attorney’s fees related bill was HB 2416, which adds 38.0015 to the Civil Practice of Remedies Code to permit the recovery of attorney’s fees as compensatory damages in breach of construction contract cases. That one was so specific that it caused me to do a little digging to figure out, “What’s going on here?” I found out that this was in response to a Supreme Court decision in Nalle Plastic Family Limited Partnership and it was in 2013. That was an insurance coverage case where the court said, “Attorney’s fees in that instance under your policy, they consider those to be costs.”

Those weren’t going to be recoverable as compensatory damages under that policy. That was probably the motivator here a little bit to get that fixed. It was 2013 so it took a while for that to happen. I’ve been told that was the motivator on this bill. That’s why it’s worded in the way that it’s worded and that was tailored to certain types of cases because those are the ones that typically find themselves in some coverage dispute. That’s the intended fix.

That’s interesting because in that same case, the Supreme Court also decided a relatively significant supersedeas issue about whether attorney’s fees had to be superseded. The rationale for saying no, that they don’t is because they’re not compensatory damages. It seems like by appeasing the insurance industry and providing in these breach of construction contract cases that attorney’s fees are compensatory damages.

They may have unwittingly complicated supersedeas practice a little bit if you’ve got that scenario, whereas the Nalle Plastics decision, attorney’s fees didn’t have to be superseded ordinarily because they weren’t compensatory damages. It’s going to create a special rule just for those construction contract clients.

That’s one of those. We always hear about unintended consequences. I’ve not done any drilling down on this particular bill to see if that issue came up in any discussions with the legislators who are pushing the bill. It wouldn’t surprise me if that is under the radar for some of these folks. It might have been talked about, I don’t know, everyone may have been able to figure out, “We can live with that.”

Maybe so but for those of us that nerd out on supersedeas issues, we don’t get new developments all that often. This is one where we’re smiling thinking, “Can’t wait for the next breach of construction contract case to come up to see if we can test this.”

A little fun fact associated with this bill is this bill was carried in the House by Representative Barbara Gervin-Hawkins. She’s a Democrat from San Antonio. For those of you who may recognize at least part of that last name and being from San Antonio, that may be of interest to you. I believe that was The Iceman’s sister. I could be wrong, which is for certain they’re related.

image of a bill and stamps

Texas Legislative Postmortem: There are disability issues dealt with in the bill that’s supposed to preempt some discretionary rulings.

They need to know outside of Texas that The Iceman is George Gervin, a very famous player for the San Antonio Spurs years ago.

A little fun fact there. That’s a role of the attorney’s fees bills that jumped out at me as something and they may have been the only significant ones that passed. At least those are the ones that were the most significant to me. For the appellate nerds, I’ve got some interesting interlocutory appeals bills.

Let’s do it because we have not had enough of those. I’m glad to hear that they’re starting to put some meat into that statute where we asked them interlocutory appeals finally.

One of the other more popular questions I get from practitioners and judges, too, is, “Were they going to create another interlocutory appeal that our courts are going to have to deal with?” It seems like there’s always some bill that deals with that issue. We have a few and one of them is HB 286 that dealt with the Texas Department of Transportation Contractors. What that bill would do was amend the Civil Practice and Remedies Code CPRC 51.014, which is the Interlocutory Appeal Statute. It would be permitted interlocutory appeal of orders, granting or denying summary judgment motions filed by TxDOT contractors.

You may ask, “Why are we providing that remedy for contractors?” The senator who carried the bill over on the senate side, he said, “The answer is an easy one. Since TxDOT contractors are given some degree of sovereign immunity because of their relationship to TxDOT, they ought to have the same remedy TxDOT has which is a right to interlocutory appeal for those summary judgment orders.” The caveat to that is as long as the contractor’s providing its services and it’s doing repairs and construction work on TxDOT projects and they’re compliant with the contract documents.

If there’s a construction defect or some sort of condition that causes the injury, as long as they’re doing that work and caused that problem, they’re entitled to this remedy. That one went into effect. That’s been on the books already. It went into effect that early because it had almost unanimous support on both sides of the aisle on both chambers. That’s why it went into effect so quickly.

Is that one that stays the whole case if you appeal?

I don’t remember.

I’m not quizzing you.

It probably would if TxDOT had that right.

It seems like it would’ve.

I’d have to double-check on that one. Bill number two that’s in this category was SB 6, which deals with responses to the pandemic situation. This is one of those little interlocutory appeals that’s buried in another bill of importance that the legislature dealt with or they felt they needed to deal with dealing with liability coming out of the pandemic.

I think everybody agreed going in that there would be some need to protect businesses and healthcare providers for those who continued to operate and provide services during the pandemic. SB 6 provides some liability protections for the providers of healthcare services, for volunteers who provide those services, for businesses that continue to operate during the pandemic and for those who supplied PPE or mask manufacturers, glove manufacturers.

There was a desire to create some liability protection for them. As long as they didn’t engage in intentional reckless misconduct of some sort that caused someone to be exposed and contract COVID, they were going to have some liability protection under this bill. Also in this bill was a nice component that dealt with expert reports, if you’re going to file a lawsuit to try to recover for COVID exposure, that you’re going to have to produce an expert that tells everybody that, “This was the cause of contracting the disease.”

If that expert report is sufficient or insufficient, depending on where you are then that’s subject to an interlocutory appeal. I don’t know how many cases are going to get filed out of this issue but everybody pretty much agreed the legislature needed to do something and didn’t do something to deal with this. That’s been happening across the nation. That bill had near-unanimous support too and so it went into effect. It’s on the books now.

It’s something like a med-mal and it sounds like almost.

Since it also deals with businesses operating and providing PPE inside or outside of the medical profession but it operates the same like a med-mal.

That wouldn’t have been codified in CPRC 51.014 then it’s probably codified. What’s the statute?

That one’s not in CPRC. It’s in the Civil Practice and Remedies Code and the Medical Liability Act. I’m not exactly sure. Part of it is in 51.014. They did get it right in terms of putting it in the right spot.

Those are ones that are buried somewhere else deep in the heart of the state codes. Those are the ones to watch out for.

The legislature has a good group called the Legislative Council. You all are probably familiar with it. Their job is to try to locate where all the statutes are affected by what bills are passed. They do a good job of making sure that what happens in one’s part of the code is dealt with and the other part of the code when they have an opportunity to. Sometimes amendments are made on the floor or on the fly and don’t go through leg council and that’s when you get problems, Todd, like you had described, where some remedy is going to be buried somewhere else that no one knows about.

You have to rely on O’Connors or somebody to give you a table of all the new statutes that affect these things. The council does a good job of trying to keep there from being too many gotchas in this situation.

They did cross their Ts on that one. The last one is SB 232, which deals with healthcare liability expert reports that amend Chapter 74 in the CPRC, which is the Medical Liability Act. It adds a preliminary determination for an expert report requirement to the statute. If someone files a lawsuit that may or may not be subject to Medical Liability Act, they can ask the judge to make a preliminary determination as to whether or not an expert report is required. Once that determination is made, that generates another opportunity for an interlocutory appeal.

The policy behind this will make some sense because we have lawyers who didn’t know whether they had a Medical Liability Act claim. We’re all familiar with the cases where we’ll decide, “This one isn’t or is and you’re going well.” They went that way. For plaintiff may be out of luck, it didn’t have many remedies but this bill would fix that. Once again, this is one of those that got broad support across the aisle, both chambers. There’s something about this bill as the governor didn’t sign it. They just let it go into law without a signature. Sometimes that sends a message, not sure what that is here but that’s what happens.

two people sitting together having a discussion

Texas Legislative Postmortem: There was a concern about having too many verdicts when a skew went awry because juries are given opportunities to ask questions and consider the evidence they shouldn’t have.

It seemed like a good fix. I’ve seen so many cases in which the lawyer made the decision or maybe it didn’t even come up on their radar screen about whether this might be a healthcare liability claim. Ultimately, they suffer the consequences if the courts determined that it is and there was no expert report filed. Better to have that determination early and get that out of the way than not have to litigate on an appeal potentially for years only to have the result completely wipe out everything that’s been done.

If anybody reading has handled these types of cases, there are some timelines in there in terms of when you need to raise these issues and then if the expert report is determined to be insufficient or you need one and there’s a timeline for that to be cured. Also, there are some timelines that the Court of Appeals makes a determination sent back that someone could still fix it. There are some details in the bill that helped with those types of issues and those questions. That concludes the interlocutory appeal component.

That is such important stuff. I’m looking at the statutes right now and this is based on the Texas statutes website. It looks like they may not have put in stays, which may be an oversight that they may have to fix later. Throwing that out there. Check the statute because these new things may or may not give rise to a stay currently.

It’s an automatic stay. That’s what you’re talking about.

I don’t know that they hooked them into the new subsections but anyway, that’s neither here nor there.

Moving on to another topic, if that’s okay. I always look for in the appellate nerds that we are, usually I bail out always like to refer to as the Texas Appellate Lawyer and One Act, there always seems to be some legislation that gives us something to chew on. That bill, this session, HB 19 is the bill dealing with civil actions involving commercial motor vehicle accidents. That’s one of the tort reform bills, if you want to put a label on it other than what I called it, that generated a lot of interest by the plaintiff’s bar and the defense bar especially if you’re handling trucking cases.

Every time I read that bill, I see something new in there and I see something different and I have more questions that come to mind in terms of how those cases are going to be tried. I don’t handle a lot of commercial motor vehicle accident cases. I’ve had a couple but I don’t roll around in the details of those types of cases as much as I probably will now so I can figure this thing out. Essentially what that bill does is there’s a lot of detail in the bill but it creates another bifurcated trial system.

If you have an employer is going to stipulate that an employee who was involved in an accident was in the course and scope of his employment and you do that within a certain timeframe, that creates another potential bifurcated trial that you’re going to have to deal with finding not only the liability for the accident but whether or not the employer may have some liability for a hiring or entrustment situation if the plaintiff alleges it.

That’s in addition to the bifurcated trial system we already have now that’s provided for your basic negligence in your punitive or your gross negligence determinations or punitive damages. I’ve talked to some people, they said, “This means we can have three different trials essentially and one trial potentially.” Some will say, “It doesn’t mean that.” At the end of the day, I don’t think we know in terms of how that piece of this bill’s going to work. Related to that are some admissibility issues for violations of regulatory standards. The CFRs that govern commercial trucking companies and drivers.

There’s a whole lot of things that deal in this bill and when that’s going to be admissible and when the jury is going to be able to hear those issues. There’s a whole lot of things to chew on in that particular bill that’s probably going to be developed through case law. The charge conferences, what that’s going to look like and how are you going preserve error on that and how they’re going to interpret that. That’s the one that’s going to give us some work especially if you spent some time in those areas at all.

Where did that get codified? Transportation Code?

It’s in the Civil Practice and Remedies Code. There are new provisions, 72.002 moving forward and then there are some provisions in the Insurance Code. It is codified in the CPRC, it’s a new section totally. That’s going to deal with these types of cases. There are also issues in there in terms of when are you going to have images of the accident scene are going to be admitted, instead of making a judge have to jump through the hoops and get expert testimony before he or she rules on it. There are some disability issues that are already dealt with in the bill that is supposed to preempt some of those discretionary rulings. Lots of little nuggets there.

How is that going to work? You’ve got the statute right in front of you. If you’re arguing one side or the other of that issue, you’re saying the legislature has determined this for you. What is your discretion? Whatever happened to gatekeeping and applying the rules of evidence?

I’ve asked similar questions to that. Essentially, this is what it boils down to. We’re still based on discretion about whether it’s too grotesque to be admitted into evidence. You’ve got the prejudicial, the fact that way, the probative value. You could still make those arguments. What I had been told was that there were some issues where that would come up or you would have judges either admitting photographs that maybe weren’t accurate representations of the accident scene whether they were actually photographs of the scene or not.

This bill is intended to deal with some of those types of issues. What’s good for the goose is good for the gander. If you’ve got a defense lawyer that wants to get certain photographs and the plaintiff’s lawyer’s going to say, “Let’s get all these other ones out here. Some of these are grotesque.” There’s still going to be a balancing test for those types of photos and videos.

This is intended to cut down on these discretionary rulings that are too discretionary. There’s a Lowry article that is supposed to be written on this bill specifically that provides the perspective from both the plaintiff side and defense side and is supposed to help everybody be educated as to what this bill means. I’m not sure what the timeline is on that but these issues are going to be covered.

I would hope so. Surely, somebody’s going to take a look at whether there’s a separation of powers issue here with the legislature telling the courts how to try their cases. I haven’t thought about that specifically. Not only are we in the business of creating all these additional interlocutory appeals, which day in day out, most appellate lawyers are fine with that because they talk about the full employment act for appellate lawyers.

This is a different issue. Off the top of my head, I can’t think of another example. The punitive damages, maybe Chapter 41. There are pretty specific procedural provisions there but I can’t think of another example where, by statute, the leg has come in and said, “Here’s how you’re going to try your case.”

Part of the problem here, the problem might be a harsh word depending on what side of the V you’re operating on, there was some concern about juries being asked to fill in too many blanks on the general negligence question. For example, if you had an employer who you alleged was either begs in hiring or supervising or entrusting a vehicle to someone involved in an accident that there’s some discussion about whether or not that’s relevant to whether the driver was negligent at the time of the accident.

Why are we giving all these extra blanks for a jury to complete, to add negligence to the defense side? Theoretically take it away from the plaintiff side because to add up to 100 leads, someone’s going to have to pull that up. I understand that to some degree as to why you may not want to have that many blanks on the first question that juries are asked to fill out.

That may be what’s going on here. Let’s separate out the negligence of an employer and make that a separate discussion, separate issue once you get past the negligence of the driver. There was a concern about there being too many verdicts that when askew went awry because juries are given opportunities to ask questions and consider evidence that shouldn’t have at least in the mind of the legislature. It’s a long-winded answer to where he was going.

That’s the motivator. When HB 19 was originally filed, Representative Jeff Leach filed and he carried it in the House. The bill was a mess. Everybody would agree. He did a great job in terms of what legislators are supposed to do to bring stakeholders into the discussion, to get everybody to give and take and agree on what they can live with. When this bill passed in the House and the Senate, there was a pretty good consensus in terms of the yay votes. It went necessarily that they supported it, that they could live with it.

At the end of the day, there was a consensus to vote yes on both sides. It may have even been 30 to 1 in the Senate that got modified to the extent that everybody could live with it. This was one of those bills that all the stakeholders were pulled in, everybody agreed on something, which is the way the process is supposed to work. This is the end result.

It’ll be interesting to watch how it develops going forward.

I’ll be paying attention to that one obviously but I’m going to be on the lookout for these law review articles. It’ll probably be pretty helpful, at least for those of us who were interested in it. That’s the primary bills that I kept track of that passed that are probably worthy of discussion for purposes of the day especially for us in the appellate world.

What about the ones that didn’t get there? Where are the ones that we were thinking might show up that didn’t make it?

The bills that got the most attention on those that didn’t make it across the finish line dealt with the Court of Appeals. I don’t know if you want to talk about that.

Let’s talk about it because I have a feeling it’s going to come back around in some form.

scientist holding the world, world is wearing a mask

Texas Legislative Postmortem: The pandemic issues and the freeze event in February compressed the timeframe to get things done.

In January 2021, I may have even mentioned this, that there was a bill filed in November 2020, on the House side that would have eliminated overlapping jurisdictions or overlapping counties and the fifth, the Dallas Court of Appeals, the Texas Court of Appeals, which is the 6th and then the 12th, which is Austin and there are not many of those overlaps in there.

Frankly, those overlaps were negotiated back in 2004, 2005 as to be the only ones left. When that bill got filed, I thought, “This is odd. Why are we filing this?” Because all it would have done was eliminate that. I found that it was a placeholder bill for a larger redistricting effort that was going to be attempted later in the session.

That was in November and then between November and then April, which we’ll talk about what the proposal was, there was another Bill filed in the house that matched the first bill and there was a companion in the Senate called Senate Bill 11 that matched the original House bill. In April, a proposed amendment to SB 11 was filed.

Senator Huffman was the Senator carrying the bill that drastically changed the composition of the Court of Appeals if it had passed. It was a bill that everybody knew was coming but no one ever got to see until a few days before in terms of what it was going to do to the Court of Appeals. Essentially, what it would have done was reduced the Court of Appeals from 14 to 7.

The maps are interesting. I don’t have that visual. It’d be helpful to have that visual but I don’t have it in front of me. I probably should’ve sent it to you and we could probably pull it up somehow. It goes from 14 to 7 and it would have maintained 80 judges that we already have but they would now be all put on 7 courts instead of 14.

What would that have looked like? That would have created, say a 21-justice court in the Houston Lake Jackson area and 18 justice court in Dallas and Austin because those two courts would have been combined. The fifteen-judge court in the Fort Worth, Eastland, Texas County, Waco areas would have been the new four. You would have had these huge courts.

That would have changed the boundaries dramatically so everything would have looked a whole lot different. The theory behind the change is because we need to make our courts operate more efficiently, eliminate conflicts between Courts of Appeals, eliminate these overlapping jurisdictions. That was the reason given for the bill when it was filed.

It didn’t pass. As a matter of fact, it was pulled down shortly after. It was out of the Senate. There are reasons why it got pulled down. There was a lot of uproar from not only the democrat judges or Courts of Appeals but also from the grassroots Republican side especially in rural areas because of the effect would have been, at least that was their perception, they’re probably right, that if you make fourteen courts seven and you have urban areas that have the hubs of those courts that a lot of these rural areas are now going to lose their ability to put judges on the Courts of Appeal. That makes sense to me. That’s a good reason. In any event, there was enough pushback from various sides to have that bill pulled down. Jody, it’s something we’re going to see again, it’s just a matter of time.

If you can find that map, Jerry, it would be great. The idea of combining Dallas and Austin into one appellate district is intriguing. The I-35 court, short of San Antonio.

What’s interesting to me was that when you’re combining courts and you have courts all each has their individual chiefs then somebody else is going to get be designated as the chief. Like the Fort Worth, Eastland, Texarkana Court, for example, the Waco Court, the new chief of that would have been the current chief of the Fort Worth court so the other chiefs would become just regular associate justices. They may not have had a problem with that but that has some interesting ramifications about internal operations and how that works.

The implementation of something like that is wild. Take whatever efficiency you think you’re going to gain by consolidating the courts like that but think about what it’s going to be like for a period of years. At some level, I suppose, chaos. The statutes — the bills laid out who was going to become the chief. That decision would be made but then are terms going to be staggered differently? How’s that going to work? It’s an administrative nightmare.

What was also interesting is that some of these judges that are in current courts would have been reallocated or put into another district. For example, Jody, where you and I spent a lot of our time in Fort Worth, one of our justices would have been assigned to the new Houston/Lake Jackson Court of Appeals. Had that judge wanted to run again after the term expired would have to relocate to that jurisdiction to be able to run for that seat or if they wanted to stay where they are then run against somebody who’s currently on the Texarkana court.

There’s a whole lot of moving parts to something like that. It didn’t make a lot of sense. From what I was told, there was not a lot of input sought from the stakeholders in this whole deal. I’m hoping that if this comes back again, stakeholders will be asked to chime in and everybody will be able to have some input on this deal because they weren’t getting it before.

That certainly was the feeling. It felt very rushed and I’m sure that there were reasons behind some of the moves. Some may be more cynical than others but it felt like things got thrown out pretty quickly without a whole lot of consideration of the practical consequences.

This hearing on April 1st, 2021, I heard that. This is what was unusual, this bill along with another one that we can talk about if you want. This Texas Court of Appeals bill was considered in that same hearing and voted out of that same hearing the same day, after hearing testimony from those who came down to participate. It was fast-tracked, both of them, for whatever reason. Interesting stuff but there are politics involved in their office also obviously. It’s an interesting way to try to do that.

We do have to get at that Texas Court of Appeals bill a little bit because all three of us will recall the discussion going on in appellate circles and other places about that bill. Do you want to refresh everyone’s memory if they don’t know what that was all about?

That’s SB 1529 and it would have created a statewide Court of Appeals district. We’re already having a discussion about having too many courts of appeals from 14 to 7 now. We have another bill that would have created an additional Court of Appeals. It would have appellate jurisdiction over cases involving the state, state agency, state officials and proceedings of which a party was challenging the constitutionality of a Texas statute.

That’s the sole jurisdiction it had, at least under the bill as proposed. It would have been composed of five elected justices. They would sit in Austin but they could travel and hear cases elsewhere. What’s interesting about this particular bill besides the subject matter was that according to OCA, the Office of Court Administration, if you were to take a look at the cases and the number of cases that would fit within the jurisdiction as proposed, we’re looking at about 9,500 cases total each year.

You would have 9,500 cases to be dealt with by five judges. The caseload that our court appeals deal with now and most judges handle about 125, 130, 140 cases on their own. You would have had a court with a small jurisdiction. What was interesting about this bill is once it got to the Senate floor, it was amended to increase the compensation of these judges to equal the compensation of a Supreme Court judge.

You would have had an intermediate Court of Appeals justice getting paid the same amount as the Texas Supreme Court justice and doing a lot less work than your other Courts of Appeals and their justices there. From a financial standpoint and fiscal standpoint, that one didn’t make any sense. Last, there was going to be some reason to use that court to expand its jurisdiction later perhaps to include maybe business disputes.

That’s speculation, I’m just thinking out loud. That’s the line of thinking when I was starting to go down to figure out what else is going on here. Other than the political issues that go with trying to pull the cases out of Austin for a statewide court or a mini–Supreme Court essentially to handle because maybe perhaps someone didn’t like what the third Court of Appeals had been doing with some of these types of case.

Are there other things that we may see again on the horizon that were controversial or hot this last session or any specials?

There are two other issues. Business courts and business trial courts and the Court of Appeals, that’s a bill that continues to be filed. We may see that at some point in time that this session one got out of a House committee but didn’t get put to a House vote. That type of a bill, we’re always going to see until something happens, at least to give some folks who think business courts are important and who maybe can get a little bit of relief to address whatever concerns they have.

That one’s going to be something we see again. I don’t know that we need to spend a lot of time on that one because maybe the more important one that impacts what you and I do and our trial judge to deal with is remote proceedings, your Zoom proceedings. Everyone has asked questions about when are remote proceedings are appropriate, what types of hearing should they be used for which ones are not.

There’s a lot of debate as you would imagine about when those are appropriate when there’s not. The Supreme Court has some jurisdiction, they’ve got the authority to provide some rules on those lines but there was a legislative effort to provide some uniformity to what courts could and couldn’t do in terms of remote proceedings.

HB 3611 was the House bill, SB 690 was a Senate bill. This bill would have authorized trial courts to conduct remote proceedings but there were some limitations placed on it such as and if they were going to have remote proceedings, all parties had to be notified of it. A party would have an opportunity to object if they didn’t want to have a remote proceeding, they’d have to have ten days’ notice of that.

A court could go in and decide whether or not their objection is valid and how to deal with it. If there were contested criminal proceedings, both sides are going to have to consent jury trials and civil district, statutory county probate or county courts. If you’re going to trial case remotely. Jury trials and courts could do that, too but they would have to provide an opportunity for someone to object. Jurors would have to have access to technology.

There’s a lot of things that are in this bill that would have provided some uniformity statewide to conduct these proceedings. HB 3611 passed in the House but it died in the Senate. You got a hearing but it didn’t get anywhere. Shortly after that, there was already an omnibus court bill on the House side that deals with things such as creating new courts and various other things.

It can happen with respect to courts, generally. In this remote proceeding language is added to that bill. It passed the House but it died in the Senate. What that tells me and it’s pretty obvious is that there’s a big problem with the Senate with these remote proceedings. It wouldn’t unanimously pass but there were majority folks, obviously, this crosses political lines for support for this bill on the House but in the Senate, for whatever reason, they didn’t quite like the idea.

We’re going to see something like this again. The House sponsor told me that he had hoped to try to get it on the agenda for the special but it doesn’t look like that’s going to happen because I don’t think there’s going to be any interest in the Senate. We may see an interim charge on this, which is the studies in between sessions where the legislature will look at issues, study them, take testimony and make recommendations for the next session.

This is a big deal as you all know. Like mask mandates and vaccines and elections and there are some hot sports opinions on both sides of this whole remote proceedings deal. That’s something that we’re going to have to take a look at as we move forward because we’re going to have to deal with it. The legislature wants to set some guidelines that everybody has to operate.

This is all great stuff. These are things that we have talked about time and time again on this show. Especially the remote proceeding thing and the future of it. There’s so much value to it but they’re also, to your extent, there does have to be some standards because it’s operating under emergency orders, fly by the seat of your pants thing, that’s inconsistent across the thousands of trial courts in Texas. It’s good that they’re at least looking to figure out some rules.

The real sticking point on this from a practitioner perspective seems to be remote jury trials and whether people are going to be compelled to try their cases remotely to try and remove the backlog that’s accumulated. I know there have been some cases that are worked their way up on mandamus. I’m not aware of any substantive opinions that have been written on those so far.

I know there’s one pending at the Texas Supreme Court right now but who knows how that’s going to turn out. I don’t think there’s even been maybe a full briefing requested but it hasn’t been granted. We will see how this is going to go because that’s going to be a question that’s going to impact the civil justice system probably most substantially in this is if you don’t want a remote jury trial, you’re going to have to accept that that’s your fate and that’s a pretty big monumental issue to get resolved.

To your point, Todd, the feedback I got from the Senate side when I asked a few questions about what the objections were, always came back to jury trials and evidentiary proceedings and making sure that if somebody wants a jury trial or they want to confront their witnesses face-to-face as opposed to remotely. They wanted to have that right and make sure that was enshrined in whatever was passed. This bill attempted to do that because of the consent requirements.

You start getting into, “What type of proceedings? How are we going to define that?” Devil is in the details type of deal. There was some real heartburn on the Senate side for whatever reason about what the house had proposed. It also boils down to whether or not they had time to address it, given the timeframes in the legislative session because we didn’t talk about this but you only have 140 days to get something done but then with the pandemic issues and also the freeze event in February 2021, that compressed the timeframe even further to be able to get things done. It was tough to do.

Jerry, you’ve been so great sharing your knowledge with us. It’s helpful to those of us at practice, not just civil litigation but also appeals. As we’ve done before with you on the show, we typically ask our guests at the end to offer a tip or a war story that may be the best tip, having thought about it for the last little bit that you could offer is to remind folks how to get your legislative updates. Those are extremely valuable. I would suggest to anyone if you’re even remotely interested in tracking legislation in Texas that affects civil litigation to get on Jerry’s list. How can people do that?

The easiest thing to do is just shoot me an email at JDB@All-LawFirm.com. Shoot me an email, say, “I want on the list.” It’s easy to do it. It doesn’t cost anything. During a regular session, you’ll get updates from me, if not weekly, at least every couple of weeks, depending on where we are on the session. During the specials, I don’t send those out as often, unless something interests us. I’m happy to add anybody to the list. I keep it neutral. I don’t provide commentary but the emails have links to bill texts and committee hearings and sponsors. There’s much detail in there as you want. I’ll try not to overdo it. I enjoy doing it and it’s helpful to some.

It’s very helpful.

I’m happy to add you.

If you’re not already on Jerry’s list, get on there. Thanks again as always for reading. Jerry, thanks for being with us.

Thank you so much.

I’m happy to do it. Thanks for having me.

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About Jerry Bullard

Jerry BullardMr. Bullard is board certified in Civil Appellate Law by the Texas Board of Legal Specialization and specializes in handling civil appeals and assisting trial counsel with legal and strategic issues in complex civil litigation. He has represented both plaintiffs and defendants, and has handled numerous appeals involving various types of civil and commercial litigation, including personal injury, insurance coverage, contract disputes, and First Amendment issues.  Mr. Bullard also assists trial counsel at every level of litigation, including legal analysis of claims or defenses; handling dispositive motions, such as summary judgment motions, motions to dismiss, and motions for directed verdict; monitoring trial counsel and advising about error preservation during trial; preparing, objecting to and arguing the jury charge; and preparing and arguing all post-trial motions.

Mr. Bullard also represents individuals, business entities, healthcare organizations, educational institutions, and non-profit organizations with respect to governance and operational issues, contract negotiations, and other matters requiring legal analysis.

Mr. Bullard has served as chair of the Tarrant County Bar Association Appellate Section and chair of the state Bar of Texas (SBOT) Appellate Section. He also serves as the co-chair of the Legislative Liaison Committee for the SBOT Appellate Section, and has demonstrated a commitment to preserving the integrity of the Texas justice system by consulting with state legislators about issues affecting the judiciary and the administration of justice.

Mr. Bullard is a frequent author and speaker on trial and appellate procedure, substantive developments in the law, the legislative process, and legal writing and analysis. He also volunteers his time and resources to educate students and the general public about the judicial branch’s role in a democratic society.

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Photo of D. Todd Smith D. Todd Smith

D. Todd Smith practices in the Appellate and Written Advocacy Group at Butler Snow LLP, where he represents clients in all phases of civil appeals and original proceedings and works with trial teams from the earliest stages of litigation. In trial courts, Todd…

D. Todd Smith practices in the Appellate and Written Advocacy Group at Butler Snow LLP, where he represents clients in all phases of civil appeals and original proceedings and works with trial teams from the earliest stages of litigation. In trial courts, Todd takes the lead on strategic analysis and briefing, jury charges, and potentially dispositive motions, all with a focus on preserving error and positioning cases for appellate review.

Todd earned degrees from Texas Christian University (B.S. 1989), Texas Tech University (M.P.A. 1992), and St. Mary’s University School of Law (J.D. 1995). While in law school, he was editor in chief of the St. Mary’s Law Journal and interned with Fifth Circuit Judge Emilio M. Garza (ret.).

Before joining Butler Snow, Todd served as a briefing attorney to Texas Supreme Court Justice Raul A. Gonzalez (ret.) (1995-1997), practiced with Fulbright & Jaworski L.L.P. (now Norton Rose Fulbright US LLP) (1997-2006), and ran his own civil appellate boutique (2006-2021). He is certified as a specialist in Civil Appellate Law by the Texas Board of Legal Specialization and regularly appears on Thomson Reuters’ Texas Super Lawyers list.

Todd frequently writes and speaks on appellate-related topics. In addition to publishing Texas Appellate Strategy, he is the creator, producer, and co-host of the Texas Appellate Law Podcast, a weekly show that demystifies appellate law and pulls back the curtain on the appellate system through conversations with judges, court staff, and practitioners.

Todd sits on the State Bar Board of Directors, is immediate past chair of the Austin Bar Foundation, and is a past-president of the Austin Bar Association. As Austin Bar president (2019-2020), Todd spearheaded creation of the Lawyer Well-Being Committee, which aims to educate, support and connect the Austin legal community to achieve more balanced, mindful, and joyful lives and practices. He also serves on the Judicial Committee on Information Technology, is a trustee of the Texas Supreme Court Historical Society, and is a member of the Robert W. Calvert American Inn of Court.